With unsurprising regularity, a young lawyer twits that he tried a case that he thought he should have won. But he lost. He’s upset. He’s angry. He twits for catharsis. He twits for succor. He asks, “Was it me, did I blow it? I thought I did a great job, but I lost.”

In response, there is usually an outpouring of support from his tribe, other young lawyers of similar stature, assuring the bereft lawyer that he did a great job, that it wasn’t him, that it’s the system, the jury, the law that sucks. But not him.

In the latest one that crossed my path, one older and more experienced lawyer twitted that no criminal defense lawyer (actually, he said “public defender,” but it’s not an important distinction) loses a case and doesn’t doubt that he could have done better. This is a truism, and it should be. Every good lawyer who gets a guilty verdict ponders what he could have done better. Heck, most good lawyers ask the same question even when they get an acquittal, realizing that the verdict could have easily gone the other way. Juries are fickle. Continue reading →

It seemed most likely to be a horrific murder or rape to be the impetus to demand reversal of New York’s new bail reform laws, which went into effect January 1. Not that anyone with any real grasp of criminal law didn’t know it was going to happen. Of course it was. Something would happen. Something always happens.

Some guy cut loose for a crime on the list of crimes for which bail couldn’t be imposed would go out and commit a horrific crime and all hell would break loose. The backlash would be as insipid as the frontlash, as advocates for change used sad anecdotes to support their cause, and so too would advocates against it do the same, but with a story of how horribly wrong it was to free the guy who did this horrible thing.

The new bail reform law was crafted to produce this result. Instead of reaching individual determinations on a better basis than the failed way in which it had gone on forever, and which could have been ended in a snap had judges chosen to do their job rather than rubber stamp baby prosecutors’ often needless requests for bail, it created yet another one-size-fits-all solution: precluding the use of bail for most crime. Continue reading →

They were so enthralled that you would have thought the ABA added ten new paying members, but it was only that a second state adopted the ABA’s social justice Model Rule 8.4(g).

Maine is the second state to adopt Rule 8.4(g) of the ABA Model Rules of Professional Conduct, according to Bloomberg Law. Vermont was the first.

Maine’s Supreme Judicial Court adopted the new rule, which takes effect June 1. It differs slightly from the ABA model rule, according to Bloomberg Law.

“Slightly” does a lot of work here, as the word “significantly” must have had more letters than the ABA could afford. There is a reason the rule has been shunned and rejected, so naturally the brave scolds of the ABA learned their lesson, right? Continue reading →

Mario’s ugliest son can moral grandstand with the best of them, particularly when it ends up with people going to prison as long as they’re the “right” people. But as governor, Andy Cuomo has proven himself as niggardly as possible.

Friday turned out to be the day some New York State prisoners saw their dreams come true in the form of mercy from Governor Andrew Cuomo.

The governor used his executive clemency powers to commute the sentences of two convicted criminals, and grant pardons to nine others.

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SHG:

Aloha from “my island.” I don’t want to give away too many particulars of my location because I like how few people are actually around.

It’s amazing out here. A ten minute walk for coffee in the morning will give you a gorgeous oceanfront experience. I am sheltered from the bulk of “mainlanders,” the good-natured jab locals call tourists. There’s basically no one within thousands of miles to piss me off. Continue reading →

One of the weird things about having been around the blawgosphere for a long time is that you know people from back when, and people who stumbled onto the internet later can’t understand how friendships came about given their current impressions of personas. I’ve been friends with Mike Cernovich since his blawg Crime & Federalism, long before his Gorilla fame on twitter.

On the other end of the spectrum, there’s Elie Mystal, who found his way onto Above the Law back when it was funny and relevant by winning ATL Idol. The commentariat there spent a good deal of time kicking Elie in the butt, as he (like me) became renowned for his typos, and I came to Elie’s defense for two reasons. First, he was brutally smart and hysterically funny. Second, I like Elie and he was a friend. Continue reading →

The history of the alcohol breathalyzer is a sordid affair. From the secret sauce of proprietary source codes to the magic number of blood alcohol concentration, it’s primarily a victory of Mothers Against Drunk Driving using anecdotes of tragic deaths of children to sway a nation to believe in the syllogism: something must be done. And so it was, vilifying drunk driving as inchoate murder, at best, and putting a lot of otherwise law-abiding people in the docks, if not prison, along with all the consequences for them and their families.

Aside from criminal defense lawyers, no one cried for the drunk drivers. Even if they weren’t really drunk drivers, but no one cared enough to parse that nuance. When it comes to criminal law and anecdotal tragedies, we love to cherry pick between those we favor and those we don’t, even if it changes from time to time as the winds of feelings blow. Continue reading →

The post is, after its intro, a dive down a rabbit hole that is guaranteed to kill brain cells, but it makes an interesting point up front.

We call them SJWs (social justice warriors) and fight against their attempt to take over pop culture and dictate public opinion. It proved to be an arduous task, mainly because so many of the general public are ‘passive regressives’: they buy into the pretense of SJWs to fight for social justice, so they blindly take their side even though they do not share their regressive values.

Putting aside the hyperbole, there is merit to the notion that many people who believe in equality, who believe in “justice,” tend to align themselves with progressives. After all, if you aren’t against equality, aren’t against “justice,” and surely are against Trump, what else can you possibly be? Continue reading →

Marches are fun and cool, and have been for generations, even though they accomplish no more than an opportunity to wear one’s finest pink knitted cap. But the New York Times lauds a unity march in New York against Anti-Semitism to show the “true spirit of New York.” Its use of the word “true” is a curious device, as reflected in these comments to the editorial.

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Not every mass murder, violent racist attack or even run-of-the-mill street crime can be attributed to mental illness, but a lot of them can. It’s hard to divine whether the crime is driven by mental illness or just that being driven by hatred and mental illness prevents that thing in one’s head that stops a person from acting upon one’s worst feelings. Either way, mental illness plays a significant role in crimes, some horrific and tragic and some banal, except to the victim.

But while we recognize this, it’s become almost impossible to do anything useful about it.

The Rev. Wendy Paige, the pastor for the man charged in the Monsey attack, noted that he had battled with mental illness for two decades and had been diagnosed with schizophrenia. “There hasn’t been anyone who has given a real solution to deal with a grown man who is dealing with schizophrenia, other than ‘Go home and call us if something happens.’” Failing to treat individuals with documented mental health issues is not an acceptable solution.

Continue reading →